RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of October 24, 2008 No. 13

About practice of consideration by courts of corporate disputes

For the purpose of ensuring the correct and identical application by courts of the legislation which governs the corporate relations, forming of single court practice in this sphere, implementation of proper protection by courts of the rights and legitimate interests of physical, legal entities and the state which are connected with creation, activities, management and the termination of activities of economic societies, the Plenum of the Supreme Court of Ukraine DECIDES to make to courts such explanations:

1. By hearing of cases which arise on the corporate relations the court shall find out what regulations of the substantive right govern the corresponding relations, and based on these regulations to solve case.

The corporate relations are governed by the Civil code of Ukraine (further - group of companies), the Economic code of Ukraine (further - HK), the laws of Ukraine of September 19, 1991 No. 1576-XII "About economic societies" (further - the Law on economic societies), of February 23, 2006 No. 3480-IV "About securities and the stock market", of December 10, 1997 No. 710/97-BP "About National depositary system and feature of electronic security circulation in Ukraine" (further - the Law on National depositary system), of May 15, 2003 No. 755-IV "About state registration of legal entities and physical persons entrepreneurs" (further - the Law on state registration), the Regulations on procedure for maintaining registers of owners of personalized securities approved by the decision of State commission on securities and the stock market (further - GKTsBFR) of October 17, 2006 No. 1000, Regulations on depository activity, the approved solution of GKTsBFR of October 17, 2006 No. 999, the Regulations on procedure for increase (reduction) for the size of the authorized capital of joint-stock company approved by the solution of GKTsBFR of February 22, 2007 No. 387, the Regulations on monitoring procedure behind registration of shareholders for participation in general meetings of joint-stock companies approved by the solution of GKTsBFR of December 23, 1998 No. 199, other regulatory legal acts.

Provisions of legal acts which were effective to the introduction in action of group of companies are applied in part in which they do not contradict this Code.

2. The law of Ukraine of December 15, 2006 No. 483-V "About modification of some legal acts of Ukraine concerning determination of cognizance of cases on questions of privatization and on corporate disputes" (further - the law No. 483-V) to jurisdiction of economic courts refers cases which arise on the corporate relations on disputes between economic society and its participant (the founder, the shareholder), including the participant who was disposed, and also between members (founders, shareholders) of economic societies which are connected with creation, activities, management and the termination of activities of this society, except employment disputes.

In case of determination of jurisdiction (cognizance) of cases of this category courts need to be guided by the concept of corporate laws determined by part one of article 167 HK according to which the right of person which part is determined in authorized capital (property) of the economic organization which include competences to participation of this person in management of the economic organization, receipt of certain particle of profit (dividends) of this organization and assets in case of liquidation of the last according to the law, and also other competences provided by the law and statutory documents is corporate.

If the subject list of persons who participate in case or subject of action do not answer with certain item 4 of part one of Article 12 of the Economic Procedure Code of Ukraine (further - HPK) to cases which arise on the corporate relations, courts shall take into account that according to article 1 HPK disputes on protection of the violated or disputed rights and interests of the companies, organizations, the organizations, other legal entities protected by the law are subordinated to economic courts (including foreign), citizens who perform business activity without creation of the legal entity.

3. Are not subject to consideration according to the procedure of economic legal proceedings of case, connected with creation, activities, management and the termination of activities of other subjects of housekeeping which are not economic societies (cooperatives, the private, collective enterprises and so forth) if party litigant is the physical person. At the same time the regulation of item 4 of part one of article 12 HPK owing to its imperative nature is not subject to application by analogy concerning the disputes connected with activities of other subjects of housekeeping.

The item 4 of part one of article 12 HPK also concerning the cases connected with creation, activities, management and the termination of activities of economic society if one of parties to the case is not the participant (the founder, the shareholder) economic society, including such which was disposed is not subject to expanded interpretation. In particular, disputes with the assistance of heirs of members of economic society who did not become his participants yet are not subordinated (cognizable) to economic courts.

4. In case of the solution of question of whether the dispute which arose between economic society and officials of society which are part of executive body of society or supervising council of society is, labor or corporate, courts need to be guided by provisions of Chapter XV of the Labor code of Ukraine (further - the Labour Code).

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